On The Legal Finding

Legal finding is an objective reality.Both in Anglo-American law system and in continental law system, the judges need to resolve the problems of legal basis. Richard A. Posner said,"From where do they get the rules of application? This question has long been proposed." And Posner reviewed the brief history of the development of western jurisprudence. Legal finding is the term used by the European and American jurist and in China researchers pay more attention to it because of the development of legal methodology research. The study also limited in three fields of questions as why does legal need to be found? How to find the law? And where to find the law? Although some scholars illustrate the concept, value, the attribute of law discovery, path and method, rules and mechanism with practice oriented problem, but there are not enough practice-oriented researches of legal finding. This dissertation focusing on the practice-oriented researches tries to research the legal finding from the path, methods, rules and other important aspects.This dissertation is arranged as follows:The part of introduction mainly talks about why legal finding is chosen as the research topic and the significance of the research, reviews the research situation related to this topic at home and abroad, especially the research status of domestic law that has been carefully.The first chapter discusses the concept of law finding carefully. Concept is used to express the nature of things and starts the cognitive thinking. In this chapter, the author read the existing reference books and ideas of different scholars found and compared with legal finding that can be used in the legislative and judicial sense of view:the law finding is the finding of the law. Legislation in the sense of law refers to the legislators in legislative activities and formulates some abstract legal rules of conduct to adjust the human activities and methods, which can be defined as "legal discovery" in English; Legal finding in the sense of law refers to the judicial cases that are pending, looking for to judge the case of legal principle, legal rules, the referee activities and methods, the specification can be corresponding to the English term "legal finding". Both of them is to seek method, in the sense of legislation law finding is discussed from the point of view whether it exists or not., in the sense of judicial the law finding focuses on the application of law. In this chapter, the author also did the comparison of the similar concepts which deepens people’s understanding of concept of legal findings. The legal finding is helpful to judge according to law, to prove the judge’s subjectivity, to enhance the acceptability of judgment, and to improve the judicial credibility.The second chapter is about the history of the legal finding. According to professor Zhang Naigen’s book named "The Western Philosophy History" the main representative ideas of the legal finding are presented systematically. It is found that from Platon to Hagel’s legal finding viewpoint mainly is the legislation law discovery; from Bentham to Kelsen’s legal finding viewpoint is both the legislative and judicial meaning of the law discovery; from Hart to Posner’s the legal discovery viewpoint is more focused on the legal sense. The reason is probably because the ancient scholars’ discussion is mainly about the source of positive law which determines their emphasis on the meaning of legislation. But recently almost all the jurists’ answer to the question how should the law be applied for are related to the fundamental question "the law is found or created", then the judicial sense of the legal finding is drawn people’s attention. Through the investigation of the history of the theory of legal finding, we also found that:without the political structure of the power and judicial power (including administrative rights), the sense of the legal finding is neither necessary nor possible, only when the "separation of the three powers" coming into practice from the theory, the judge need to determine whether the law is found or the law is created. In the paper, we also found that:Montesquieu is the first person to explain the judicial sense of the legal finding, Savigny was the first person to put forward clearly the concept of legal finding, Ehrlich’s "living law" couldn’t tell the meaning of legislation from the judicial sense of the law finding; also the similar and different issues were found in the discussion of Gray, Holmes, Cardoso and nuances, why would Dworkin wanted to deny that the judge made law, why did Posner insist on the middle routine of legal finding and so on. The review of the history of legal finding provides a profound accumulation for the following study.The first and two chapters are the theoretical basis of legal finding study.The third chapter introduces the scene and field of legal finding. This is a question that a practice-oriented legal finding must answer at first. Subjects of legal finding refer to the people who can find that law. The parties involved, the agents and the judges can take it and we focus on the legal finding of judges. In this chapter, the author put forward that the scene and field can show the relevance between legal finding and the specific case. The Scene of legal finding mainly refers to who can do legal finding and the result of the legal situation; Legal field refers to where the parties, their agents, judges can find the law. There are no new concepts or ideas proposed by the author but the overview of the past researches. This chapter is about a formal of source and the informal source of law and the combination of them can provide the field of legal finding and guarantee a legal basis for the case.The fourth chapter reveals the path of the legal finding. The path here used to describe the general process and direction in the judicial practice, and outlines the path of legal finding, namely " read the case facts←�'sum up the case←�'the recognition of the case←�'from legal norms to referee specification", and between each path←�'is used rather than�'to illustrate the interaction of two paths of succession. The proposal of interaction between the garment is put forward by the author, there may be some disadvantages, I will appreciate the criticism and questioning.The fifth chapter analyzes the methods of legal finding. Every method has its hierarchy, is just one part of the system as well. A kind of method can be attributed to a higher level, can also be further divided into more specific methods. As legal interpretation methods, including direct interpretation, objective, system interpretation, historical interpretation methods, such as legal finding should also include some more specific and detailed methods. Based on this understanding, the author in this chapter reviewed the specific methods, including but not limited to: culvert perturbation and belonging, and so on, to find and build method, comparison. These specific methods of legal finding were explained by some scholars also made some explanation and this dissertation made an effort to give a systematical interpretation in this chapter.The sixth chapter puts forward five rules of legal finding. The rules of the law is not a new problem, there are many scholars made interpretation in this field, such as some scholars put forward rules of legal finding mainly includes:main source prior to secondary source; rules prior to the principle; lower-level law prior to host law; special law prior to general law; procedural law prior to the substantive law, and solve the conflict of laws rules, such as the principle of superior to rules; Host law is superior to the lower-level law; the new law is superior to the old method, etc. But in my opinion, these are not the legal finding rules. Legal finding rules should be found for case and regulations such as the judge found that should be followed by the process of conduct, which are not limited to:the distinguishing rules among three types of cases, the rules of finding law in today’s system, the rules of reasons and arguments, the most closely related rules, etc.Chapter three, four, five and six which are the main parts of the practice-oriented study of legal finding reflect the author’s innovation about the description of path, the interpretation of methods and the summary of rules put forward systematically by the author for the first time.Because of the limit the author’s ability and time, the shortcomings of this article are also obvious:firstly, the explanation of the path to the legal finding is descriptive analysis, lack of scientific explanation; Secondly, we can’t answer the question about pragmatics when we talk about the commonly used methods of legal finding, especially for finding similar or related legal basis, why do we choose A but not B or C; thirdly, we don’t know whether the conclusion of the main rules of legal finding can be accepted by the academic recognition.